Michigan Appellate Court Calls for a Conflict Panel to Decide Issue Under Michigan Wages and Fringe Benefits Act

By: Claudia D. Orr

I know some might laugh, but these types of things get me really excited!  First, the Michigan Court of Appeals hardly ever publishes an employment law opinion and, second, it is requesting a conflict panel to revisit a prior ruling. This is exceptionally rare. Moreover, there are very few cases published under the Michigan Wages and Fringe Benefits Act (“WFBA”) and a conflict panel, if assembled, could significantly expand an employee’s right to be free from retaliation.  Let’s see what the issue is in Ramos v Intercare Community Health Network, a 2:1 divided opinion published on January 30, 2018.

Joel Ramos worked for Intercare Community Health Network (“Intercare”) for about two years when he was fired for allegedly submitting a false timesheet.  Ramos filed a complaint with the Wage and Hour Program of Michigan’s Department of Licensing and Regulatory Affairs. Ramos claimed that, by “accurately” filling out and submitting his timesheet he was exercising a right to receive his wage payment under the [WFBA] and he was discharged unlawfully for exercising that right under the act.  The Wage and Hour Program disagreed, finding that Ramos had not exercised rights under the act and the circuit court upheld its ruling.

The WFBA provides that:  An employer shall not discharge an employee or discriminate against an employee because the employee filed a complaint, instituted or caused to be instituted a proceeding under or regulated by this act, testified or is about to testify in a proceeding, or because of the exercise by the employee on behalf of an employee or others of a right afforded by this act.

MCL 408.483(1) (emphasis added).  The issue was whether an employee’s exercise of his own rights “is the exercise of rights on behalf of ‘an employee’ because he is ‘an employee.’”

Previously, in Reo v Lane Bryant, Inc, 211 Mich App 364 (1995), it was decided that the “employee must be exercising a right afforded by the act on behalf of another employee or other person.  Simply exercising a right on one’s own behalf would not bring an employee within the purview of [MCL 408.483].”  But now, the appellate court concluded that the Reo case was wrongly decided because the word another is not found in the statute. However, it also recognized that it was bound by precedent and therefore affirmed the circuit court’s decision, but called for a conflict panel to reevaluate the issue.

Judge Hoekstra, the dissent, agreed with the majority’s decision to affirm the lower court’s decision, but found no error in the precedent that bound the appellate court’s decision.  First, he noted that only the last clause (“…because of the exercise by the employee on behalf of an employee or others of a right afforded by this act”) was at issue since Ramos had not filed a complaint, testified (or was about to testify) or instituted (or caused a proceeding to be instituted) under the act.  Then, relying on Black’s Law Dictionary he found that the phrase “on the behalf of” means “in the name of, on the part of, as the agent or representative.” Thus, while the statute does not contain the word another, it is clear that there must be some sort of an agency whereby the employee is acting “on behalf of another employee or other person.”  Finding that Reo had been correctly decided and that it has been the rule of law for more than 20 years, Judge Hoekstra found no need to a assemble a conflict panel.

Thus, the rule remains for now that, to be protected from retaliation under the WFBA, an employee must be acting on behalf of another employee and cannot simply turn in his own time card (accurate or not).  There are some other quirks under the WFBA that can be used for the benefit of employers in their personnel policies.  If you aren’t sure how to apply this law favorably for your company, you should consult with an experienced employment attorney, such as the author.

This article was written by Claudia D. Orr, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and an experienced labor/employment attorney at the Detroit office of Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM).  She can be reached at corr@plunkettcooney.com or at (313) 983-4863. For further information go to: http://www.plunkettcooney.com/people-105.html.

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